Special Series: Perspectives from Undergraduate Law StudentsJ.D. Student Contribution

–Larissa Warren, rising 3L, Boston College Law School

[Editor’s note: The students in my advanced seminar on constitutional amendment wrote excellent papers in their take-home examination for the course. They were given a choice of two questions to answer: (1) “Is the United States Constitution Too Difficult to Amend?”; or (2) “Assume the year is 1787. You are an advisor to a delegate to the Constitutional Convention in Philadelphia. What advice would you give about how to design Article V?” Below, I reproduce my student Larrisa Warren’s answer in response to Question #2, with her permission. –Richard Albert]

Words to a Delegate: Crafting Article V

If I were advising a delegate to the 1787 United States Constitutional Convention, I would: first, urge him to identify the primary purpose for our Constitution and of an amendment-making mechanism; second, offer suggestions for the kind of issues to consider in a newly drafted Article V; and, third, recommend three specific modes for enacting a constitutional amendment.

Purpose of Constitution and Amendment Procedures

It is essential to keep the purpose of a constitution at the forefront of any constitutional question. The overarching purpose of having an amendment mechanism is similarly important to consider throughout developing such a process. Beliefs surrounding the purpose of constitutions and amendment procedures will prove definitive to the end result of Article V. While Convention delegates may have varying purposes in mind, here are a few worthy purposes to consider before addressing more concrete amendment recommendations.

The Constitution should provide a framework of governance for the nation. It should outline procedural expectations for states and individuals to rely on. From the nation’s inception, the Constitution should attempt to outline its core values, even if unable to provide an exhaustive list. Many of these core values may overlap with the procedural framework, such as a representative form of decision making and involvement of every citizen in the governing process, whether directly or indirectly. Further, the Constitution can demonstrate commitment to protecting, or not infringing, certain rights of its people.

The next step is examining the purpose for creating a means to amend the Constitution. Despite an effort to provide the ideal governmental structure and populace protections from the beginning, it is likely that time will reveal faults needing remedied. Allowing for a means of change to solve subsequently discovered difficulties is the first purpose of an amendment procedure. Additionally, national needs will change as the country grows and develops. Even if the Constitutional text is not inherently faulty, it may not contain all that is needed for later generations. Equipping future generations with a way to amend this Constitution will avoid them from having to hold a full Constitutional Convention to draft a new document merely for isolated changes. Writing a process into the text of this Constitution will likewise avoid later parties from having to create an amendment procedure from scratch, and then being subject to various branches of government’s claims to authority over the process. Similarly, giving the power to amend to future citizens keeps the power in the hands of the people – surely a core value of any democratic republic. Finally, instituting a means to change the Constitution provides a check of last resort for improper use of authority by a sitting government. Allowing the people (through ways we will discuss later) to have a way to institute change apart from the president, legislature or courts maintains a crucial balance of powers.

Considerations When Drafting Article V

Delegates should consider these essential matters in designing the amendment process: responsibility for proposal and ratification, content subject to amendment, difficulty, involvement of all branches, and precise procedural guidance. These considerations are with a two-step – proposal and ratification – process in mind.

Responsibility for Constitutional Amendments

An essential first decision is what parties should be responsible for proposing and ratifying constitutional amendments. I suggest that there needs to be more than one system in place so that amendments can occur through representative bodies or through the populace as a whole. Previously elected legislators offer both a convenient forum for enacting amendments and a demonstrated commitment to the best interest of our nation. As Madison aptly put it, our representatives’ “wisdom may best discern the true interest of their country and [their] patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” [Vile, Constitutional Revision in the United States of America, at 399, quoting Federalist No. 10]. With such people already in place, providing them a means to amend the Constitution is a more efficient, and possibly more valuable, process than solely by popular vote. However, relying only on representatives, who are themselves already limited by the powers delegated in the Constitution, to change the Constitution would rob the nation of some of its powers of popular sovereignty. See Amar, Popular Sovereignty and Constitutional Amendment, at 92. Yes, the people elect those representatives, but they are elected for far broader responsibilities than merely amending the Constitution. Thus, the public’s considerations may be very different when thinking about a specific amendment proposal than it was when they voted for their representative. Allowing the people to directly propose and/or ratify an amendment will also keep the greater populace engaged in our government. The United States of America should be a nation where everyone who desires can be involved in shaping our Constitution’s evolution. Legislatures are inherently limited to a certain number of people. Providing for amendment by popular referendum will make our system more democratic and will keep our citizens passionate about the government that is meant to be for and with them, not rule over them. See Ferejohn & Sager, Commitment and Constitutionalism, at 1954 (“…the obduracy of Article V acts to suppress the people’s voice in our constitutional affairs, and thus is either flatly undemocratic, or at least more antidemocratic than we would like.”).

Content Subject to Amendments

Next, consider providing guidance within the text of the Constitution for what should be subject to amendment. There may be certain core elements of this nation that, if changed, would in essence require a new Constitution. Those core values encourage inclusion of a provision that renders certain structural issues unamendable. While constitutional details may be subject to change, things such as the representative process may be a core doctrine of our nation, which cannot be rescinded without removing a vital part of what this Constitution is creating.

While some recommend also including separate amendment mechanisms for changes dealing with governmental structures versus citizens’ rights, I suggest not dividing processes based on content of the amendment. Too much ambiguity exists between what impacts liberties and what is a purely procedural change. Determining which mechanism each change is subject to would be time consuming, contentious and unnecessary if the rest of the amendment process is appropriate. While this ambiguity could also be problematic for any provisions deemed “unamendable,” those are more necessary to include, despite the costs, than multiple levels of amendment requirements. Any change to the text of the Constitution, regardless of content, should be seriously considered and subject to a rigid enactment process.

Difficulty of Amendments

Speaking of rigid process, possibly the most contentious issue to determine is how difficult of a process it should be to change the Constitution. This topic in particular brings us back to the first question of the purpose of our Constitution. This document is, and must continue to be, different than ordinary legislation. It is not only a guide for structure, and possibly rights, but it will be used as a symbol of who we are as an independent sovereign. Any change, deletion or addition to this document should be subject to great thought, discussion and a popularly circulated, articulated specific intent for the purpose of the alteration. Therefore, it is essential that a constitutional amendment not only be more difficult to pass than regular legislation but much more difficult.

There are many reasons that it is essential to have an amendment process that cannot be accomplished with ease. Considerations such as stability and allowance of governmental structures to do their work independently illustrate why the amendment process should be difficult. See Sullivan, Constitutional Constancy: Why Congress Should Cure itself of Amendment Fever, at 695-702 (combining some of her categories). As a foundational document, and as a symbol to ourselves and other sovereigns, the Constitution should not be frequently changed. This would communicate instability and prevent planning for national alliances or state decisions. It is also likely that an improperly simple amendment process would soon encroach upon powers properly delegated to a branch of federal government or to the states. A constitutional amendment should not take the place of the representative process, executive orders, or judicial decision making.

That said, as mentioned when exploring reasons to have an amendment process to begin with, it does need to be possible to amend. Therefore, while the amendment process should not be so easy to amend that its use creates imbalance or takes the place of a proper power, it should be easy enough to amend that it can correct a faulty procedure or check a rouge branch of government or state action. Ferejohn and Sager rightly remind us of the Constitution’s multi-dimensional purpose when they say “constitutional democracies expect more of their institutions than stability and security.” Commitment and Constitutionalism, at 1936. Not only our institutions, but our foundational document, should embody possibility, commitment to improvement, and subordination to the will of the people. We are a risk taking nation. We would not be the United States of America without being willing to fight the structure of an inappropriate governance when the time becomes necessary. The people cannot be a slave to the original Constitution; the Constitution should be subject to its citizens at each stage of our national history. Finding the delicate balance between difficult enough to provide national and governmental legitimacy and easy enough to offer room to grow and improve as a nation may be the most difficult task in designing Article V.

Involvement of the Legislature, Executive Branch and Judiciary

Further, articulating a role for each branch of government in the amendment process will assist future generations. Providing the legislature with power for amendment proposal and/or ratification is a simple and valuable role for that branch. However, the executive and judicial branches have less direct applicability. Therefore, reducing ambiguity in their role may help future generations avoid misuse. I recommend an explicit provision regarding the president’s role in constitutional amendment: even if the only statement is that there is no intended role. Providing a means for the president to propose an amendment is a possible role; which, if exercised, should be subject to the same rigidity of ratification. Delineating the judiciary’s responsibility for interpreting or validating an amendment is perhaps the most crucial role to delegate. While the Constitution, and ideally its future amendments, provide “majestic generalities,” courts must bring them “to earth” through application to individual cases and controversies. Ferejohn & Sager, at 1960; Forbath, The Politics of Constitutional Design: Obduracy and Amendability-A Comment on Ferejohn and Sager, at 1971. Providing guidance regarding whether the United States courts should have power to determine when an amendment violates a core principle of our nation, if an amendment process was followed adequately, or the manner other branches of government should respond to a judicial interpretation of an amendment would minimize conflicts for future generations.

Procedural Guidance

Lastly, Article V should provide structure for the actual amendment processes. It should include a specific procedure for rescinding a prior ratification, a timetable for proposal or between proposal and ratification of an amendment, and details of how the general public may enact their powers of amendment (e.g. ways to convene a constitution or who is responsible for organizing a referendum). See Spotts, The Twenty-Seventh Amendment: A Late Bloomer or a Dead Horse?, at 351-54; Viles, Different Kinds of Conventions. I recommend leaving an open timetable between proposal and ratification. However, Article V should provide a way for a state to rescind their ratification in case of popular opinion changing for a proposal open for many years. This suggestion returns again to the purpose of our Constitution. Whatever our nation deems worthy for inclusion in the Constitution should not be rushed and should be able to stand the test of time.

While the Constitution should be difficult to amend by numeric votes, the procedure should be easy to follow to ascertain that number. This is especially true for the popular sovereignty amendment option. There should be a clear, definitive way for the people, as a whole, to propose and ratify an amendment. Therefore, it would be helpful to appoint a body, such as each state’s government, to oversee state conventions or organize referendum occurring within their state.

Specific Recommendations

Finally, I recommend including the following three sections in Article V:

Section 1. Amendment by Representative Body

The numerics of this section are unoriginal. However, I would allow proposal and ratification methods to function beginning in either the Congress or State Legislatures.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by Legislatures of three fourths of the several states. Alternatively, an Amendment shall be valid if Congress, by two thirds of both Houses, ratifies an Amendment that has been proposed by Legislatures of three fourths of the several states. [Much language, though edited, taken from U.S. Constitution, Article V].

Requiring action by both state and federal legislative bodies to enact a constitutional amendment offers protection for the United States’ federalist values, and acts as a check on improper purposes by state or federal politics. The high number of votes required to pass an amendment in this manner ensures that it will not be used for essentially legislative action. However, the numbers are possible to reach in times of great need or unity. The following additional recommendations provide for other options for constitutional amendment if this bar becomes too high, or if political division renders this method ineffective.

Section 2. Amendment by Convention

My recommendation for the text of Section 2 results primarily from the dual purposes of: 1) facilitating popular civic responsibility and ongoing public evaluation of our nation’s needs and 2) providing a periodic opportunity for peaceful reconciliation of national legacy with modern concerns.

Every Twenty-Five years, the Governor of each of the several states shall convene a Constitutional Convention, comprised of two elected delegates, not in public office, from each county within such state, to determine need for any Constitutional Amendments. If three quarters of the delegates within two thirds of the states propose an amendment of any kind, the President shall convene a national Constitutional Convention, comprised of delegates from each state’s convention, in proportion to the state’s population, to ratify any Amendment by two thirds vote.

While the numerics and procedural details of this suggestion should be analyzed and improved, the procedure of having a routine convention every quarter of a century would provide for periodic national evaluation on the popular level, planned opportunity for substantive change and a “legal means to alter the fundamental law short of revolution.” See Denning & Vile, The Relevance of Constitutional Amendments: A Response to David Strauss, at 274 (referring to amendments in general).

Section 3. Amendment by Referendum and State Legislatures

In the interim between periodic conventions, Article V should provide for a way for the populace to participate in proposed constitutional amendments in case the federal and state legislative option becomes inept. The following recommendation offers a means to encourage adequate popular checks.

A Constitutional Amendment shall be valid to all Intents and Purposes when ratified by Legislatures of two thirds of the several states following a National Referendum that proposes such an Amendment by three-fifths of those participating.

See Ackerman, Transformative Appointments, at 1182 for three-fifths recommendation.

Similar to the Section 2 proposal, this requires numeric and procedural refining but its essence should be considered as a way for popular sovereignty to remain a core part of the United States of America. Although it does incorporate a legislative aspect in the process, the legislatures of the states are a closer representative of the values within each state, due to the greater possibility of a non-elite representation.

Conclusion

There are many important considerations regarding what to enshrine in Article V of the Constitution. Things left out may eventually be interpreted as a core value. See Mate, State Constitutions and the Basic Structure Doctrine (should it be ascribed to the U.S. Constitution, Article V). Things put in may be interpreted or enforced not in accordance with the original design. See Spotts, at 357 (regarding the reputation of the Court as a “super legislature.”). Or, entirely different means of amending the Constitution may be used to avoid reaching the required super-majority thresholds. See, Ackerman, at 1165 (discussing the “distinctive constitutional phenomenon” of presidential transformational appointments).

Therefore, my closing suggestion is to be precise in amendment processes, comprehensive in procedural advice and inclusive of both legislative and popular means to obtain a constitutional amendment.

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